Data Retention Law Passes Federal Parliament

Friday 27 March 2015 @ 11.26 a.m. | IP & Media

The Telecommunication (Interception and Access) Amendment (Data Retention) Bill 2014 has been passed by both houses of Parliament. As previously reported by Timebase here, here and also here, the bill requires Australian Internet Service Providers and telecommunications carriers to retain customer metadata for a minimum period of two years. The data to be stored includes account holder names and addresses; date, time and duration of communications; the recipient of communications; and the location of equipment used for communications, including cell towers and Wi-Fi hotspots.

Outline of the Legislation 

Essentially, once assented and commenced, the legislation will: 

  • require telecommunications companies to retain customer’s phone and metadata for a two year period;
  • identifies and defines the types of data to be retained as phone numbers, length of phone calls, email addresses and the time a message was sent, but not the content of phone calls or emails and explicitly exclude internet browsing;
  • identifies the agencies that will have access to the data;
  • create the ‘reasonably necessary’ test that would allow agencies to access data; and
  • introduce an independent oversight mechanism, allowing the Commonwealth Ombudsman access to agency records, in a bid to boost privacy protections.

Prime Minister Tony Abbott has made it clear that in the interest of freedom of press, police and other security personnel would be required to obtain a warrant to access the metadata of journalists. Furthermore, the warrant process will be overseen by a public interest advocate. 

Passage of the Bill

With the above mentioned security measures to protect the freedom of the press, the bill was able to pass the House of Representatives. It was argued by the Coalition and Labor party that the bill was necessary for the security of the Australian people and would assist authorities in counter-terrorism and serious criminal investigations. Labor’s only concern was the protection of journalists and, in a bid to protect anonymous sources and whistleblowers, Labor and the Coalition arrived at the specific protection of this group. 

The Greens had argued strongly against the law criticising it as ‘passive, mass surveillance.’ Senators Nick Xenophon and David Leyonhjelm had also sought to change the legislation to increase privacy protections. However, all major amendments proposed by the Greens were knocked back. These amendments sought to introduce greater safeguards in the legislation, including requiring warrants for access to metadata of legal and medical practitioners as well as journalists, to require ISPs to destroy data after the two-year retention period, and to bring in a full definition of "content" to clarify what carriers would not be required to store.

However, Attorney General George Brandis maintains that the law, as amended, would strike the right balance between the need for security and the protection of the individual. 


Senator Scott Ludlam has expressed that he is ‘deeply sorry that [they] weren’t able to prevent this law from passing.’ He criticised the Labor party as having caved in to the ALP’s fear campaigns. Senator Ludlam specifically drew attention to the undisclosed cost of the system and the fact that it was not all encompassing enough to eliminate any actual terror threats. He noted that Federal Communications Minister Malcolm Turnbull had made a number of references in mainstream media about how to use technology to avoid data retention.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.


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